State of Punjab vs Bohar Singh

I.S. Tiwana. J.

The petitioner State''s application filed under section 4 10, Cr.P C. (for short the Code) for the transfer of case, i.e., FIR No 127 date June 19, 1984, under section 25 of the Arms Act, pending against the respondent in the Court of Sub Divisional Judicial Magistrate, at Moga, to the Court of Chief Judicial Magistrate, Sangrur has been dismissed vide the impugned order dated December 16, 1986 on the ground that the said Chief Judicial Magistrate has no jurisdiction, to transfer the said case out of his jurisdiction, i.e., outside the Sessions Division Faridkot. Mr. Saron, learned State counsel impugns this order on the short ground that the Chief Judicial Magistrate, Faridkot, appears to have passed this order in ignorance of the notification dated March 15, 1985, whereby the jurisdiction of the different Chief Judicial Magistrates in the State of Punjab except that of C. J. M. Patiala and the Additional Senior Sub Judge cumJudicial Magistrate Ist Class posted at Nabha, has been extended to the entire State of Punjab. This notification reads as follows :

The 15th March, 1985, No. 96 Gaz (11)7/XXI. C. 25. In supersession of this Court''s notification No. 256 Gaz. II(7)/XXI. C. 25, dated 26th June, 1984; No. 257 Gaz. II/I(7)/XXIC. 25, dated 26th June. 1984. No. 258 Gaz(7)/XX C. 25, dated 26th June 1984, and No. 249Gaz. II (7)/XXI. C. 25, dated 26th June, 1984 and in exercise of the powers conferred by subsection (2) of Sec. 11 of the Code of Criminal Procedure, 1973, Hon''ble the Chief Justice and Judges of the High Court of Punjab and Haryana at Chandigarh are pleased to appoint all the Chief Judicial Magistrates in the State of Punjab (except the Chief Judicial Magistrate Patiala) and the Additional Senior Sub Judge cum Judicial Magistrate Ist Class, Nabha, as the Presiding Officers of the Courts of Judicial Magistrate of the Ist Class, established by the Punjab Government vide their notification No. 1/24/843. The dated 7th February 1985, at Amritsar, Sangrur, Ludhiana, Nabha, Ferozepur, Faridkot, Gurdaspur, Kapurthala, Jullundur, Hoshiarpur, Bhatinda and Ropar respectively with local jurisdiction extending over The local area comprising the whole of State of Punjab, in regard to cases generally.''''

A bare reading of this notification it manifestly clear that all the Chief Judicial Magistrates except the one referred to earlier have been made Judicial Magistrate of 1st Class in the entire State of Punjab except their own local areas, i.e., Session Division in which they have been posted as Chief Judicial Magistrate. In a nutshell, ''by virtue of this notification, C.J.M Faridkot becomes the Judicial Magistrate of Ist Class for the entire area of the State of Punjab other than that of the Sessions Division, Faridkot. Similarly the Chief Judicial Magistrate at Sangrur, though remains the C.J M. for his local area, i. e., Sessions Division, Sangrur, but becomes a Judicial Magistrate for the rest of the State of Punjab. In the light of this factual position, the C.J.M Faridkot, to my mind was certainly competent to transfer the case in question pending in the Court of Sub Divisional Judicial Magistrate, Moga, i.e. a Magistrate subordinate to him to the Court of C.J.M Sangrur who by virtue of the above noted notification had become a Judicial Magistrate for the entire State of Punjab excluding his own local jurisdiction as C.J.M. For this expression of opinion I rely on the following observations made in an earlier case i.e., Lalta Prasad Saxena v. State, A.I.R. 1952 Allahabad 70, while interpreting section 14 of the Criminal Procedure Code (old), which provision is in pari materia with section 11(IA) of the new Code as inserted by virtue of Punjab Act No. 9 of 1978 with effect from April 14, 1978 :

"It should appear that A Special Magistrate appointed under section 14 is subordinate to the District Magistrate who can give direction about the distribution of work among him and other Magistrates and is also subordinate to the SubDivisional Magistrate within whose subDivision he exercises jurisdiction. This should mean, to my mind, that when magisterial powers are conferred on a person under section 14 for cases within a district he will be subordinate to the various SubDivisional Magistrates in the district with whose Subdivisions he exercises jurisdiction, and that, therefore each individual Subdivisional Magistrate will be competent to exercise the various powers which are conferred on a Subdivisional Magistrate with respect to cases before a Court subordinate to him. Of course, a particular Subdivisional Magistrate will exercise such powers with respect to the cases which arise in his subdivision and not with respect to such cases pending in the Court of the Special Magistrate which arose within some other subdivision. Similarly, if the local area over which a Special Magistrate appointed under section 14, exercises jurisdiction extends over several districts he will be subordinate to the District Magistrate of the various districts with respect to the cases arising in their respective districts and also subordinate to the various Subdivisional Magistrates with respect to the cases arising within their, respective sub divisions and pending before him. This subordination of a Special Magistrate appointed under section 14 is not dependent on his place of sitting, whether that be a fixed place or not. His subordination is dependent on his exercising magisterial powers within certain subdivisions and districts. In view of subsection (5) such a Special Magistrate is not subordinate to the Sessions Judge except to the extent and in the manner expressly provided in subsequent sections. In whatever circumstances he may be subordinate to the Sessions Judge under subsequent provisions the subordination, to my mind, would be dependent on the same principle, i. e. he will be subordinate to a particular Sessions Judge with respect to the case of another sessions division if he as a Special Magistrate has jurisdiction over several sessions divisions."

It is beyond dispute that the powers exercisable by the District Magistrate under the old Code are exercisable by the Chief Judicial Magistrate under the present Code.

In the light of the discussion above and more particularly in the absence of any opposition to the prayer made in this petition and any controversy about the submission made by the learned State counsel, I set aside the impugned order of the Chief Judicial Magistrate dated December 16, 1986 and direct him to dispose of the application of the State filed under section 410, Cr.P.C. in accordance with law and the observations made above.